The case against John Kelly: Canada’s unconstitutional Defamatory Libel law has no place in a democracy

by David Climenhaga on September 19, 2010 in Uncategorized with6 CommentsTweet

Justice William J. Brennan Jr. of the United States Supreme Court. Below: the advertisement in the New York Times that turned U.S. defamation law on its head in 1964. Below that, Alberta Social Credit whip Joe Unwin, sentenced in 1937 to three months at hard labour for Defamatory Libel.

Calgary RCMP may have done Canadians a great favour by laying criminal libel charges against a man they accuse of running a website critical of Calgary city police.With a little luck and the efforts of a capable lawyer, the Criminal Code offence of “Defamatory Libel” will end up on the scrapheap of history, where it belongs.

The Defamatory Libel provision of the Criminal Code and its Sharia-like sibling, Blasphemous Libel, have no place in the law books of a modern democracy.

On their face, these laws violate the Canadian Charter of Rights and Freedoms. Specifically, our guarantee of “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

Moreover, by any commonsense definition, they cannot be defended by the Charter’s qualifying clause, which states that its protections are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Adequate tools are available to the authorities and individuals to deal with obstruction of criminal investigations and defamations of police officers. These include the obstruction of justice provisions of the Criminal Code and the civil tort of defamation, which gives a police officer or any other person whose reputation has been besmirched the opportunity to sue for damages.

So if John Kelly of Calgary, who was arrested Thursday and also charged with obstructing a police officer from his duties, can find a lawyer willing to represent him, perhaps we can see Defamatory Libel proceed to the chambers of the Supreme Court of Canada for its long-overdue disposal.

Mr. Kelly’s website, according to the Calgary Herald’s prudently worded account, “accused officers of perjury, corruption and destroying evidence… Police deny the charges, saying they injure the reputation of Calgary police officers and interfere with an ongoing homicide investigation.” (RCMP are handling the case on the sensible grounds the Calgary Police Service ought not to investigate on its own behalf.)

The website is hosted in the United States, however. While, as the Herald pointed out, “RCMP can ask the New York-based Internet provider to take it down,” the Internet provider can also tell the RCMP its writ does not extend to New York State. Indeed, if memory serves, citizens of the United States established quite decisively in the late 18th Century certain limitations on the prerogatives of groups of men with the word “Royal” in their titles, mounted or otherwise.

The Internet provider may be inclined to do just this, owing to the fact that the country established after the rebellion of 1776 came to have, in the words of the United States Supreme Court, “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

The Supreme Court of Canada would do well to consider the wisdom of the reasoning of that civil-rights era American case, New York Times Co. v. Sullivan, when it eventually considers the criminal prosecution against Mr. Kelly.

In 1964, Times v. Sullivan turned the law of defamation in the United States on its head, one American innovation we would do well to imitate in Canada. And while it related to the civil tort of libel, much of the reasoning applies directly to Canada’s absurd and unconstitutional Defamatory Libel criminal offence.

Mr. Kelly has expressed strong views about members of the Calgary Police Service, which the RCMP says it can prove are false.

Times v. Sullivan, a case involving strong statements made about Alabama police officers in an advertisement, established in the United States the important principle that the plaintiff in a libel case (that is, the person who claims to have been defamed) must prove that the person who made the statement knew that it was false or acted in reckless disregard of the truth.

This was necessary, Justice William J. Brennan Jr. of the U.S. Supreme Court wrote, because erroneous statements are inevitable in the kind of strong debate on which a democracy thrives, and freedom of expression needs “breathing space” in which to survive.

The Supreme Court of Canada has already gone part way down this road, creating in 2009 the new civil libel defence of “responsible communication in the public interest.” While this new defence still holds journalists and others to high standards, it does recognize that minor errors made in good faith alone should not result in a defendant being held liable for defamation – as long as the story is in the public interest.

Significantly, the Court also noted in 2009 that cases involving police officers accused of acting wrongly are clearly matters about which all citizens should be concerned and therefore can automatically be defined as being in the public interest.

Obviously, Justice Brennan’s courageous logic extends to the outrageous idea of criminal prosecution of defamatory statements, especially those made against powerful people and groups in society.

Indeed, this is especially true in the case of Defamatory Libel since the mere existence of this law combined with the aggression and prosecutorial powers of the police and courts will inevitably exercise a powerful chilling effect on the willingness of citizens to make legitimate criticisms of the authorities.

It’s been 73 years since we last had the opportunity in Alberta to do something about Canada’s iniquitous Defamatory Libel law. But since Social Credit MLA Joe Unwin and George Frederick Powell, advisor to the Social Credit Board, served time at hard labour for calling for the extermination of bankers’ toadies, we have a new tool to defend our fundamental rights – the Charter of Rights and Freedoms.

Thanks to the RCMP, now is the time to complete this long journey and purge the Criminal Code of this insult to Canadians’ freedom of expression.

6 Comments on "The case against John Kelly: Canada’s unconstitutional Defamatory Libel law has no place in a democracy"

Your post sounds good from a theoretical sense – a democracy should not have cause to use this law. And it has rarely been used over the years. However, after personally having interacted with Mr. Kelly I can tell you that his actions are extreme to the point where I think it's in the public interest to see this come to a head. I suspect Mr. Kelly actually relishes his day in court in front of a bunch of reporters to make his points.

Ideally, this could have been done civilly, but most of his targets such as community associations and athletic organizations were not willing/able to fund a pricey civil case. And I doubt that the individual police officers would be allowed to make a civil suit either, so it has come to this.

I have read Mr. Kelly’s website, which is easily available to any Internet user who knows how to use a search engine, and his fulminations are clearly without merit. This is not the point. The point is that the use of a draconian law like the Criminal Code’s Defamatory Libel provisions chills the willingness of others to make legitimate criticisms of the authorities, and that such criticisms are needed for democracy to thrive. Justice Brennan’s point, if I may be so bold as to put words in his mouth, is that you can’t have democracy for reasonable people without having democracy for extremists. So, while I feel some sympathy for this anonymous poster’s point of view, tolerating the expression of such unreasonable opinions is the price we pay in a democracy for allowing the rest of us to speak freely. The key point, which Justice Brennan recognized, is that this is not theoretical at all, but goes directly to the practical operation of a democracy. So, with respect, the concerns highlighted by this poster are outweighed by the harm done by not allowing people like Mr. Kelly free rein to express themselves.

The poster correctly points out a separate problem with our civil defamation laws when he complains the cost of litigation is too high for ordinary people whose reputations truly matter, but this is irrelevant to the more serious chilling effect on democratic discourse of criminal libel laws. Moreover, I think he is simply mistaken to suggest individual police officers would not be allowed to sue for defamation. On the contrary, they would likely be encouraged. Regardless, whether or not they sue is not for their employer to decide.

Finally, in a society like ours a prosecution of this sort actually lends credence to the accusations the state appears to be trying to suppress. If large numbers of Canadians are willing to believe the police are involved in a secret conspiracy to confiscate citizens’ legal rifles and shotguns, they will also be tempted believe Mr. Kelley’s absurdities because of the ill-considered prosecution by the RCMP.

At any rate, and here is a wager, the Defamatory Libel law is so obviously unconstitutional it simply cannot withstand a Charter challenge. For that reason, ambitious lawyers will be lining up to represent Mr. Kelly pro bono and that will spell the end of this law. To steal a line from my poster, it really has to come to this, so we had all better get used to the implications.

You definitely make compelling points, and I can't really say I disagree with any of them. And I don't know if a police officer is able to sue civilly in these matters so that was simply a supposition on my part.

My frustrations in this case is that a fellow like Mr. Kelly can harass people and ultimately hurt their reputation with little practical recourse by the average person. My experiences with him were very limited and I was not a subject on his websites but it was extremely disturbing to have him call me at home and launch into his theories, hoping to turn me to his cause and publicize his efforts. I can only imagine what it has been like for some of the people he has targeted on his websites.

I read his website. He does not sound that disturbing, just confused. How can that hurt an officer's reputation?

I'm a criminal defence lawyer, and many of my clients want to complain about the police. The process is daunting, and does not inspire confidence. No recourse there. I do believe sometimes there is cause for complaint.

Not that I would like to have such a cranky client. Anonymous is right, I think he would want to be his own lawyer.

I think the UK is trying to do something about its libel laws at the moment. It has become the libel capital of the world, where anyone from anywhere can sue anyone else from anywhere. Neither party has to hold UK citizenship.

Chilling effect? Oh, yeah.

It has come to the point where anyone who has said or written something which "damages" someone's reputation can be sued, even if it is true.

So the fault lies not with the fact that, for example, a person's behaviour or views are reprehensible but that someone has chosen to write about them and reveal them to the world.

Ireland passed a Blasphemy Law last year. Irish atheists (god bless them!), challenged it. What were these people thinking?

About The Author

"In (U of A Law and History Professor James Muir's) analysis, the new legislation, with its pointed emphasis on stiff fines for advocating an illegal strike, is designed in part to intimidate high-profile, labour-affiliated bloggers, such as Dave Climenhaga …" - Paula Simons, Edmonton Journal Read More